vs.
Respondent.
) Case No. 02-2787
Pursuant to notice, this cause came on for hearing before Diane Cleavinger, Administrative Law Judge for the Division of Administrative Hearings, on October 2, 2002, in Jacksonville, Florida.
Richard L. Ruth, Jr., Esquire Ford & Harrison, LLP
121 West Forsyth Street, Suite 1000 Post Office Box 41566 Jacksonville, Florida 32203
Whether Respondent discriminated against Petitioner in its employment decisions in violation of Section 760.10, Florida Statutes (2001).
On August 18, 1999, Petitioner filed a complaint of race discrimination against Respondent with the Florida Commission on Human Relations (FCHR) pursuant to the Florida Civil Rights Act of 1992, Section 760.01, Florida Statutes. On June 4, 2002, FCHR, after an investigation, issued a "Notice of Determination: No Cause" in this matter. The Determination found that there was no reasonable cause to believe that any unlawful employment practices had occurred in Petitioner's case. Petitioner, thereafter, submitted a Petition for Relief pursuant to Section 760.11(8), Florida Statutes (2001). The Petition was forwarded to the Division of Administrative Hearings.
At the hearing, Petitioner testified in his own behalf and offered three exhibits into evidence. Respondent presented the testimony of two witnesses and offered 12 exhibits into evidence.
After the hearing, Respondent filed a Proposed Recommended Order on October 25, 2002. Petitioner did not file a proposed
recommended order.
Petitioner, Oscar Jones (Petitioner), is a black male.
He began working for Respondent in July 1997, as a longshoreman working on "chicken boats." In that position, Petitioner loaded boxes of frozen chicken into the holds of refrigerated ships.
Respondent, Coastal Maritime Services, LLC (Respondent), is engaged in the business of stevedoring and seaport terminal operations, including loading and unloading ships, and receiving cargo.
On May 28, 1998, Respondent injured himself when a very heavy box of frozen chicken fell on his ankle. Other than first aid at the worksite, Petitioner declined further medical treatment that day. He was given a medical form authorizing treatment at the medical clinic which provided medical services to injured employees who might be covered under Respondent's workers' compensation insurance.
The next day, on May 29, 1998, Petitioner sought medical treatment for his injury at the medical facility which handled Respondent's workers' compensation injuries. As part of that treatment, Petitioner was asked to take a drug test and Petitioner consented. Although no formal written drug test policy was in effect by Respondent at the time of Petitioner's injury, the general policy and practice was that a work-related injury would subject an employee to a voluntary drug test.
Petitioner's drug test came back positive for marijuana. As a result of the positive drug test result, Respondent's insurance carrier controverted Petitioner's workers' compensation claim. There was no evidence that Respondent's management had any responsibility or involvement in
the carrier's decision to controvert Petitioner's entitlement to workers' compensation benefits.
During the 12-month time period of January 1998 through December 1998, Petitioner was not the only employee of Respondent required to take a drug test after a work place injury. In fact, in June 1998 (the same time period as Petitioner's test) seven white employees were required to take a drug test and three black employees were required to take a drug test. For the entire 1998 calendar year, 51 total drug tests were administered, with 31 of those tests administered to non- black employees (for example, white or Hispanic) and only 21 of those tests administered to black employees. Similarly, for the entire 1998 calendar year, a total of 18 employees were not administered drug tests, either because medical attention was refused or because of the severity of the injury. Of those 18 employees, 11 were non-black employees and seven were black employees.
Employees who were not required to take a drug test either were those who refused medical attention or who were severely injured and had to seek treatment from hospital emergency rooms where drug tests were not given. Clearly, race played no factor in who was required to take a drug test or who received a drug test.
Petitioner did cite the names of two white employees, Jay Chavers and Andy Wiley, who allegedly were treated more favorably than Petitioner, in that those two employees did not take a drug test. However, those two employees were not "similarly situated" to Petitioner. First, the injuries of both Mr. Chavers and Mr. Wiley were much more serious in nature than the contusion (bruise) that Petitioner had suffered and both were taken to emergency rooms for their injuries where drug tests were not routinely administered. Specifically,
Mr. Chavers had fallen from a high distance and suffered numerous broken bones, thus, rendering him incapable of giving consent to a drug test at the hospital. As to Mr. Wiley, his injuries were not subject to workers' compensation coverage, unlike Petitioner's. Thus, given the nature of the injuries of Mr. Chavers and Mr. Wiley, those two individuals were not sufficiently "similarly situated" to Petitioner to enable him to establish a prima facie case of racial discrimination.
Petitioner's positive drug test result had no other impact on his employment with Respondent, apart from the controversion of his workers' compensation benefits. Indeed, Respondent attempted to get Petitioner to return to work.
Shortly thereafter, in early June 1998, Petitioner contacted the chief financial officer of Respondent, Kathleen Wiley, who in 1998 was Respondent's office manager. Petitioner
expressed concern to Ms. Wiley about his workers' compensation benefits and his employment status with Respondent. Ms. Wiley informed Petitioner that he was still considered to be employed with Respondent and that he needed to contact Ben Brown for a light duty assignment. Petitioner was expressly informed that light duty work was available that would meet his medical restrictions imposed after his injury.
Petitioner never followed-up with Mr. Brown about light duty work.
Almost immediately thereafter in June 1998, Respondent hired Bud Underwood as its new safety manager. Mr. Underwood's responsibilities were to oversee workers' compensation cases and follow up on accidents and injured employees. Ms. Wiley informed Mr. Underwood to follow up on the situation of Petitioner to get him to return for a light duty assignment.
In late June or early July 1998, Mr. Underwood contacted Petitioner as directed and offered him light duty work within his medical restrictions. Petitioner informed
Mr. Underwood in very obscene terms that he was not going to accept any light duty assignments. Petitioner never appeared for any light duty assignments after that conversation.
Based upon Petitioner's response to that telephonic offer of light duty employment, Respondent sent Petitioner a letter around July 9, 1998, informing him that based upon his
refusal of light duty work, he had been deemed to have abandoned his employment, and thus was no longer employed by Respondent due to self-termination.
Thereafter, in September 1998, Petitioner contacted Respondent by telephone seeking employment. However, by that time, opportunities for longshoremen, such as Mr. Jones were extremely limited, as the "chicken boat" operation had all but shut down for financial reasons, and no positions were available at the time. Thus, Respondent sent Petitioner a letter dated September 2, 1998, informing him that no positions were available, but encouraging him to reapply. Despite the invitation to Petitioner that he should reapply, Petitioner never submitted any subsequent inquiry for employment.
Respondent's "chicken boat" operation had shut down completely by February 1999.
Petitioner later applied for unemployment compensation benefits, but those benefits were denied on the ground that Petitioner had abandoned his employment by refusing the light duty work that was offered to him. In fact, in an evidentiary hearing held in his unemployment compensation matter, the Unemployment Appeals Referee found as a fact that Petitioner admitted that he had refused the light duty work offered to him. Petitioner's appeal of that adverse decision was, likewise, denied by the Unemployment Appeals Commission.
Petitioner's race played no role in Respondent's determination that Petitioner had abandoned his employment or in Respondent's determination that no position existed for Petitioner in September 1998. Similarly, race played no role in the insurance carrier's decisions regarding Petitioner's workers' compensation benefits.
In fact, Petitioner voluntarily settled his workers' compensation claim disputes in a settlement agreement signed by him and his attorney dated March 22, 1999. Petitioner had a family to support and needed the money. Pursuant to that settlement agreement, Petitioner agreed to accept $4,500 in full, final and complete settlement, release and discharge of any and all claims against the employer arising out of Petitioner's alleged accident, injury, and disability in issue, including, but not limited to claims for temporary total, temporary partial, permanent total, and/or permanent partial disability compensation, and past and future medical benefits. Petitioner verified that the settlement was adequate and was not entered into under duress. Rather, Petitioner of his own accord thought that the settlement was in his best interest. The Department of Labor approved the settlement.
Petitioner has made no credible showing that there was any relationship between his race and the adverse employment actions of which he has complained.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (2001).
Petitioner is a "person" and Respondent is an "employer" as defined within Chapter 760, Florida Statutes (2001).
In discrimination cases alleging disparate treatment (as opposed to disparate impact), Petitioner bears the burden of proof established by the United States Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981). Under this well-established model of proof, Petitioner bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824; Burdine, 450 U.S. at 252-253, 101
S. Ct. at 1093. Once Petitioner has done so by a preponderance of the evidence, the "burden of production" shifts to Respondent to "articulate some legitimate, non-discriminatory reasons" for Respondent's action. McDonnell Douglas, 411 U.S. at 802, 93
S. Ct at 1824; Burdine 450 U.S. at 253, 1010 S. Ct. at 1093. It is not necessary for Respondent to actually convince the trier of fact of its motive; rather, Respondent must only articulate its proffered reason through "admissible evidence." Burdine,
450 U.S. at 253, 101 S. Ct. at 1093. If Respondent meets this burden, Petitioner must prove by a preponderance of the evidence that Respondent's articulated reason was not the true reason, but was a pretext for discrimination. McDonnell Douglas, 411
U.S. at 804, 93 S. Ct. at 1825.
The above federal standards under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e, et seq., have been adopted by FCHR and the Florida courts and are applicable to cases arising under Chapter 760, Florida Statutes (2001). Florida Department of Community Affairs v.
Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991); School Board of Leon County v. Hargis, 400 So. 2d 103, 108 (Fla. 1st DCA 1981); Jo Nees v. Delchamps, Inc., 8 FALR 4389 (1986);
Kilpatrick V. Howard Johnson Company, 7 FALR 4368, 5477 (1985).
In the first step under McDonnell Douglas and Burdine, Petitioner must prove the existence of facts that establish a prima facie case of unlawful discrimination. Petitioner must generally show that: (a) he/she is a member of a protected class (for example, black); (b) he/she was qualified and able to perform his/her duties and did perform such duties satisfactorily; and, (c) he/she was treated differently than other similarly situated individuals not within his/her protected group.
As to this last element, Petitioner's burden is to establish that the employer treated similarly situated employees outside Petitioner's protected class more favorably than Petitioner. See Anderson v. WBMG-42, 253 F.3d 561, 564 (11th Cir. 2001); and Holified v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
Petitioner has not met his burden of establishing a prima facie case by a preponderance of the evidence. The evidence presented in this matter demonstrates that Respondent was just as likely to test a white, injured employee for drugs as it might test a black, injured employee. Indeed, Respondent did conduct a balanced number of drug tests across racial lines. Likewise, Petitioner presented no competent evidence whatsoever that white employees' workers' compensation claims were not controverted, unlike Petitioner's claims on the ground of intoxication. Furthermore, Respondent offered light duty work to Petitioner as it did other employees, yet Petitioner refused such work and abandoned his position. Thus, as to his employment status, Petitioner suffered no "adverse action," but instead self-terminated his employment. Finally, Petitioner failed to demonstrate that any white employees were hired in September for "chicken boat" operations, when Respondent denied a position to Petitioner on the grounds that no available positions were available. In sum, Petitioner has failed to
establish any nexus between his race and Respondent's employment actions.
Even if it is assumed that Petitioner had met his prima facie burden, Respondent clearly has articulated legitimate non-discriminatory reasons for its employment decisions. Respondent articulated its non-discriminatory policy for drug testing, and its testing data demonstrates that white employees were just as likely to be tested as black employees. Respondent articulated a non-discriminatory basis for its determination that Petitioner abandoned his employment (that is, Petitioner's own representations to Respondent that he was not going to accept light duty work and his failure to appear for any light duty assignments even though such were available). Respondent also articulated a non-discriminatory reasons for the denial of employment to Petitioner in September 1998; namely, financial issues forcing the shutdown of the "chicken boat" operations in which Petitioner had worked. Finally, Respondent articulated that all workers' compensation decisions regarding controversion of Petitioner's benefits on the ground of intoxication were made by the insurance carrier and not by Respondent's management. To that end, Petitioner's drug test result did confirm a positive result for marijuana, providing some credence to the asserted intoxication defense.
Petitioner also has presented no credible evidence that Respondent's articulated reasons for its employment decisions against Petitioner were a pretext for discrimination. The basis for the employment decisions taken in this matter were well articulated, and Petitioner has made no showing that Respondent's reasons are unworthy of credence.
Furthermore, with the exception of Respondent's denial of employment to Petitioner on or about September 2, 1998, Petitioner's other claims of alleged discrimination, as cited in his Charge of Discrimination dated August 18, 1999, and his Petition for Relief, have not been timely asserted. Section 760.11, Florida Statutes (2001), states that a complaint of discrimination must be filed with the FCHR no later than 365 days of the "alleged violation." Courts interpreting this
365-day filing limit have clearly established that this time period is not a period of convenience, but rather, an absolute statute of limitations which acts to bar the pursuit of claims and allegations that are not timely asserted. Greene v.
Seminole Electric Cooperative, Inc., 701 So. 2d 646 (Fla. 5th DCA 1997); Digiro v. Pall Aeropower Corporation, 19 F.Supp.2d 1304 (M.D. Fla. 1998). While evidence of Respondent's drug testing policies and the circumstances surrounding the termination of Petitioner's employment in July 1998 were considered in the context of background information,
Petitioner's claims of discrimination arising out of his drug test administered on May 29, 1998, and his self-termination of employment in July 1998 were not timely asserted within the strict 365-day time limit.
RECOMMENDED that the Petition be dismissed.
DONE AND ENTERED this 16th day of December, 2002, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2002.
Peter Reed Corbin, Esquire Richard L. Ruth, Jr., Esquire Ford & Harrison LLP
121 West Forsyth Street Suite 1000 Post Office Box 41566 Jacksonville, Florida 32203
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
